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District Court 15 December 2023

R v Abbas

[2023] NSWDC 644

Drugs
CRIME DRUG OFFENCES COMMONWEALTH OFFENCES IMPORT COMMERCIAL QUANTITY OF A BORDER CONTROLLED DRUG METHAMPHETAMINE

Citation: R v Abbas [2023] NSWDC 644
Court: District Court of NSW
Date: 15 December 2023
Judge(s): Sutherland SC DCJ

Background

The offender, a Bangladeshi national living in Australia on a student visa, pleaded guilty to importing a commercial quantity of methamphetamine contrary to section 307.1(i) of the Commonwealth Criminal Code. On 28 October 2022, he returned to Sydney's Kingsford Smith Airport after a two-day trip to Fiji carrying a suitcase containing 17 bottles labelled as "Pure Fiji Nourishing Exotic Oil." Border Force officers detected anomalies in the suitcase and discovered the bottles contained a yellow liquid that tested positive for methamphetamine.

Forensic analysis confirmed the bottles held a total gross weight of 17.293 kilograms of liquid, with methamphetamine at 44.8% purity, yielding a calculated pure weight of 7.747 kilograms. The commercial quantity threshold for methamphetamine is 0.75 kilograms, meaning the quantity imported was more than ten times that threshold. The offence carries a maximum penalty of life imprisonment.

Text messages extracted from the offender's mobile phone revealed communications with a person identified as "007Mic" in the days before departure, in which travel arrangements and a promised payment of $9,000 were discussed. Separate messages sent by the offender from Fiji on 27 October 2022 referred to this being "the second time," his intention to be "out" after this trip, and having "hit a lick," understood as a reference to earning a large sum quickly.

Legal Issues

  • Whether the offender had actual knowledge that he was importing a border-controlled drug, or whether his culpability was properly characterised as recklessness.
  • How the objective seriousness of the offending should be assessed, including the significance of the drug quantity and the offender's role as a courier.
  • What weight should be given to unsworn and untested statements tendered through psychological reports, letters, and pre-sentence reports in mitigation.
  • Whether the offender's subjective background, including his upbringing and psychological profile, engaged Bugmy-type principles so as to reduce his moral culpability.
  • The appropriate starting point, discount, and head sentence, including the non-parole period, having regard to comparative cases.

Decision

Issue 1: Actual Knowledge Versus Recklessness

The court found it could not be satisfied beyond reasonable doubt that the offender had actual knowledge he was carrying drugs (at [27]). The nature of his communications with "007Mic," including explicit statements that the cargo had "nothing to do with drugs," raised at least a reasonable doubt on that question (at [27]). However, the court accepted that, given his previous involvement in the drug world, the offender displayed a very high degree of recklessness as to the substantial risk that he was carrying drugs, producing a correspondingly high level of moral culpability (at [28], [133]).

Issue 2: Objective Seriousness

The court assessed the offending as falling towards the lower end of the mid-range of objective seriousness (at [30], [112]). The quantity exceeded ten times the commercial threshold, which elevated seriousness, and the motivation was plainly financial gain (at [29]-[30]). The offender's role as a trusted courier, rather than an organiser or principal, was relevant to, but did not eliminate, his culpability (at [131]).

Issue 3: Weight Given to Unsworn Mitigation Material

The court applied the principles affirmed in Imbornone v R and Lai v R, treating unsworn statements in the psychological report, letter of apology, and Sentencing Assessment Report with caution (at [32]-[38]). The offender did not give oral evidence. The court noted internal tensions between his account to the psychologist (that he was misled into thinking he was a courier of sauces) and the objective material in the Agreed Facts, as well as inconsistencies between different documents (at [40], [61]). The court accepted the uncontroversial factual background but maintained reserve about more expansive claims regarding remorse and insight (at [39], [57]).

Issue 4: Bugmy-Type Considerations

The court acknowledged the offender's difficult upbringing, including physical discipline by parents, claimed exposure to domestic violence, and significant bullying during school years in Saudi Arabia (at [42]-[47]). It nonetheless found that the present circumstances were substantially removed from the factual foundation of Bugmy and analogous cases, and that Bugmy-type considerations had no significant role to play in determining an appropriate sentence (at [121], [136]).

Issue 5: Discount, Starting Point, and Head Sentence

The court accepted a 25% discount, reflecting the utilitarian value of the guilty plea and the offender's expressed remorse, notwithstanding the reserve maintained about the unsworn nature of that remorse (at [137]). The court set a starting point of 11 years, applying the 25% discount to arrive at a head sentence of 8 years and 3 months (at [140]). The non-parole period was set at 4 years and 6 months (at [141]). The court confirmed that the prospect of deportation was a matter for the executive government and played no role in fixing the non-parole period (at [130]).

Orders Made

  • Head sentence of 8 years and 3 months imprisonment, commencing 28 October 2022 and expiring 27 January 2031.
  • Non-parole period of 4 years and 6 months, commencing 28 October 2022 and expiring 27 April 2027.

Key Takeaways

  • A finding of very high recklessness, rather than actual knowledge, as to the nature of imported goods can still produce a significant sentence for a commercial-quantity drug importation, particularly where the offender had prior involvement in drug-related activity (at [28], [133]).

  • Unsworn and untested statements tendered through psychological reports, letters, and pre-sentence reports in mitigation must be treated with caution; the District Court applied the principles in Imbornone v R and Lai v R and reduced the weight given to such material accordingly (at [32]-[38]).

  • Where the facts said to ground Bugmy-type mitigation are substantially removed from the serious deprivation described in Bugmy and analogous cases, a sentencing court may decline to give those principles any significant role in fixing the appropriate sentence (at [121], [136]).

  • Previous uncharged drug transactions revealed in text messages did not aggravate the objective seriousness of the charged importation offence, but were admissible to contextualise the offender's relationship with the organiser and his state of knowledge at the time of the offence (at [131]-[132]).

  • Consistency in sentencing for Commonwealth drug importation offences across different Australian states remains an important consideration; comparative cases from Queensland and Victoria were examined alongside NSW decisions in calibrating the appropriate range (at [105]-[110]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Criminal Code Act 1995 (Cth)

Cases
- Bugmy v The Queen [2013] HCA 7
- Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DPP v Peng [2014] VSCA 128
- Estevez v R [2020] NSWCCA 184
- Gwardys v R [2019] NSWCCA 62
- Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590; (1989) 88 ALR 161
- Imbornone v R [2017] NSWCCA 144
- Kentwell v The Queen (2015) 252 CLR 601; [2014] HCA 37
- Klomfar v R [2019] NSWCCA 61
- Lai v R [2021] NSWCCA 217
- Legult v R [2014] NSWCCA 271
- Lloyd v R [2022] NSWCCA 18
- Martinez v R [2020] NSWCCA 250
- Olbrich v The Queen (1999) 199 CLR 270
- R v Agboti [2014] QCA 280
- R v Banker [2016] QCA 74
- R v Elfar [2003] NSWCCA 358
- R v Fu [2022] NSWDC 381
- R v Kassir [2020] NSWCCA 88
- R v Luiz Diego Mouzinho de Lima [2020] NSWDC 249
- R v Ngyuen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- R v Thathiah [2012] QCA 195
- R v Toafa [2019] NSWDC 361
- Totaan v R [2022] NSWCCA 75
- Tyler v R (2007)173 A Crim R 458
- Van Zwam v R [2017] NSWCCA 127
- Xiao v R [2018] NSWCCA 4; (2018) NSWLR 1
- Zaugg v R [2020] NSWCCA 53